O.K., I know, not many people place much faith in the Paperwork Reduction Act (PRA). It is hard to find evidence of reduction in paperwork, either in the government or what government requires of the governed. The goals of the PRA, however, are laudatory, as with most such laws, even if the results have been disappointing. That is to suggest that the PRA is not bereft of merit. At the very least, it provides a yardstick for measuring some regulatory abuse, and that is worth more than nothing.

The PRA was enacted, “to ensure the greatest possible public benefit from and to maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal Government” and “to improve the quality and use of Federal information to strengthen decision making, accountability, and openness in Government and society.” (44 U.S.C. § 3501) An agency that evades the PRA should be suspected of seeking to evade achievement of those purposes. Those purposes are intentionally hostile to regulatory caprice.

This is not a hypothetical musing. Consider this record of the Bureau of Consumer Financial Protection—one of the least accountable of Federal agencies. Most plans of Federal agencies to gather data from 10 or more private sector parties require review by the Office of Management and Budget and exposure to public comment. The Bureau, however, makes extensive use of the PRA’s Generic Clearance process to avoid public scrutiny. Under this simplified procedure (normally used for routine matters, such as customer satisfaction surveys, focus group testing, and website usability surveys), agencies can obtain expedited and advance sign off for information requests—with little or no public awareness of what the agencies are doing and therefore little or no opportunity to comment on the value, purpose, and likely effectiveness of the proposed collection of the private sector information. 

In November 2011, the Bureau obtained Generic Clearance under the PRA for the innocuous and bureaucratic sounding project, “Generic Clearance for Development and/or Testing of Model Forms, Disclosures, Tools, and Other Similar Related Materials”. Once the Bureau obtained the rather routine OMB Generic Clearance for the project, the Bureau subsequently used it 13 times for qualitative testing, including projects relating to consumer decision-making on debit card and ATM overdraft options. These 13 information requests were obscured from public review and comment, frustrating the PRA’s objectives “to strengthen decision making, accountability, and openness in Government and society”.

In January 2013, OMB approved the Bureau’s request for “Generic Clearance for Qualitative Consumer Education, Engagement, and Experience Information Collections” under the PRA. The Bureau conducted 17 separate information collections under this approval, with little public awareness. One was a survey on checking account debit programs, beginning with an initial sample of 10,000 households, leading to in-depth, one-hour interviews with 100 overdraft users. Astonishingly, the Bureau certified that the information collected from this overdraft survey would “not be used for the purpose of substantially informing influential policy decisions,” a statement that may overdraw the Bureau’s credibility account. N.B. that elsewhere in the Bureau’s description of the overdraft survey is the admission that the Bureau is planning “a series of one or two additional white papers” on overdraft, and that the survey “will inform our interpretations of the quantitative data in these white papers.” Bureau officials have long announced overdraft programs to be on their list of issues for regulatory policy review.

Why raise this now? The Bureau has announced that it plans in 2016 to go forward with a long-planned regulatory effort targeted on bank checking account debit overdraft programs, one of the most popular means (aside from credit cards) for bank customers to obtain immediate access to short-term credit. Much of the Bureau’s studies and reviews on overdraft have been taking place for years outside of the public view.

Would it be too much to insist that the consumer Bureau—whose leadership reassures us is a “data-driven” agency—provide along with its policy and regulatory proposals adequate public access to the data on which it bases its actions (appropriately aggregated and anonymized)? Might that help provide some accountability to an agency that otherwise operates in a poverty of accountability?

This, from the Bureau’s website, on a page titled, “Open Government”: “Transparency is at the core of our agenda, and it is a key part of how we operate. You deserve to know what we’re doing for the American public and how we are doing it.” We should hold them to that pledge. We deserve it.

(Note, I raised these points in testimony before the Subcommittee on Oversight and Investigations of the House Financial Services Committee, on December 16, 2015.)